The next social elections are slowly approaching. They will take place between 13 May 2024 and 26 May 2024. These dates may seem a long way off, but the start of the procedure, on day “X‑60”, is getting closer. This first contribution in our series on social elections deals with an important aspect of the first stage of the procedure, namely the calculation of the employment rate threshold during the reference period. We also take a brief look at the concept of the technical operating unit. Finally, we invite you to consider the dreaded “occult” period to avoid any unpleasant surprises.
At the end of the reference period, it is time to start counting!
A social consultation body (Works Council and/or Committee for Prevention and Protection at Work (CPPW)) must be established if the company employs a specified minimum number of workers during a certain reference period. The reference period for the 2024 social elections has already ended. It ran from 1 October 2022 to 30 September 2023.
We therefore recommend that you take the necessary steps to determine the employment threshold within your company during that period. The act regarding social elections refers to the usual average number of workers employed in the company.
For the calculation of the employment threshold, a worker is any person linked to the company by an employment agreement or an apprenticeship agreement.
- The following categories of workers are notably included: white-collar workers, blue-collar workers, executives, managerial staff with an employment agreement, students, teleworkers, etc.
- Notably excluded are: workers bound by a replacement agreement, temporary agency workers within the temporary work agency (although they count for the user company except in the case of replacement), self-employed workers, workers seconded to the user undertaking provided they remain under the authority of the employer seconding them, etc.
Our tip – To calculate the average number of temporary agency workers for the user company, the reference period is the second quarter of 2023. Please note that temporary agency workers replacing permanent workers are excluded from this calculation.
At which level? The technical operating unit
Social elections are organised at the “company” level, defined as a “technical operating unit” (TOU). Determining the TOU is a key exercise in the electoral process. The TOU is defined on the basis of economic and social criteria, with the latter taking precedence in case of doubt. Our clients can find a checklist in Dutch or French in our Client Zone.
Weird thing – The determination of the TOU may be different for the Works Council and for the CPPW. Different criteria may have more or less influence depending on the body concerned. In practice, for example, it is not uncommon for a Works Council to be set up at a high level and for different CPPWs to be set up at decentralised levels.
Keeping an eye on the horizon… the “occult” period
We will tell you more about the “occult” period in a future contribution. However, make a note in your diary that this famous period during which redundancies (in particular) are strongly discouraged will begin on day “X‑30”, i.e. between 14 January 2024 and 27 January 2024, and will end on day “X+35”, i.e. between 19 March 2024 and 1 April 2024. Employers exercising greater caution will wait until day “X+76”. We will come back to this point later.
Watch out! – Are you planning to restructure your company or reduce your workforce in the near future? Are you unhappy with a worker, but would you still prefer to postpone possible termination of your collaboration? You will have to make a decision soon. Dismissal during the election period is particularly risky, indeed almost unthinkable, given the strict protection rules that apply during this period.
In our next contribution, we will look again at the various elements that must appear on the “X-60” day notice, the concepts of managerial staff and executives, and potential disputes relating to the determination of the technical operating unit.
The Eubelius Social Elections Focus Team is ready to help you through the 2024 social elections with legal advice, support with negotiations and assistance, as well as representation in court in the event of litigation.